tv [untitled] August 2, 2012 11:30am-12:00pm PDT
had no idea what laws are out there. we want to make sure there is a requirement that tenants be informed about this. the fourth aspect of our proposal includes in a new and amended leases, a requirement with provisions that address their respective obligations of landlords and small business tenants to bring premises into compliance. we want to ensure that tenants and landlords are talking to each other about how they are going to comply and they for accessibility improvements so that they're doing this with each other as opposed to working together to fight off a lawsuit. the fifth aspect of the proposal would criers our office of small business to develop a pamphlet notice in multiple languages regarding federal, state, and local disability access laws that may require, and require landlords to provide such information to tenants. we want to make sure that everyone is educated and educated in inappropriate in multiple languages. i will be circulating senate --
some technical amendments to clarify what i just described. but want to take a moment and thank all the parties that have worked with my office on this legislation. certainly the small business commission. want to single out scott for the working has done on this. i want to thank the representatives of landlords, commercial landlords, particularly from boma and the san francisco association of realtors. our deputy city attorney has worked tirelessly on this. and i want to thank my a katherine on this matter as well. one thing i want to mention, if there's one additional amendment requested by the office of small business and supervisor carmen chu, which was to expand the application of this ordinance so it applies not just to small business tenants, which is defined in my legislation as businesses that lease 75 and is published seven of 500 square. less from a commercial landlord, but to expand the definition to all business tenants because every business tonight can be impacted. i am is open to consider this
amendment that would like and appreciate feedback from the public office. with that, i know that supervisor mar as a great lineup to to get us on this. supervisor mar: thank you. the first speaker is regina dick-endrizzi will give us an overview on how we got to where we are today. >> thank you. i am going to provide an overview of where we are, somewhat how we got here. adjacent will explain the laws and will give you greater insight to that -- jason will explain the loss. then we will provide some recommendations that our office has put together. with the years as director of the office of small business and working on this issue, the
overarching element is that enforcement is through civil litigation. and i am saying this not to imply ed all that the means of making any improvement is to remove the civil rights elements from individuals with disabilities at all. but what i have come to understand is that through our government entities, both state and local, because of this overarching element that basically complaints is civil litigation. there is kind of this complicit approach that while a business can defend whatever it is doing without the understanding of the cost of that defending and which, in talking with some of the landlords, would average about $50,000 to be able to defend a lawsuit. the other element that i have
observed is that this law has been in place for 20 years. and if civil litigation is the most effective means of achieving compliance, then why are not more individuals with disabilities suing? i think individuals with disabilities do not they patronize and do business with. what that has surmised to me is we as government are failing our individuals with disabilities and our small businesses by putting them in this adversarial relationship to ultimately achieve compliance. and so it is incumbent upon us to look at areas where we need to do improvements for ourselves and when i say we, that is the greater weight of the
government, local, state, and federal. what we have seen since our office and supervisor david chiu had mentioned, his time on the small business commission, businesses that have opened -- recently opened, a high percentage of restaurants are minority-owned. businesses are sued by the san plaintiff and planned as often returned to the same area and recirculate. the average settlement is around $20,000. we have seen that and since 2002, i'm a proximate -- i am in
approximating we have 400 businesses that have been sued. going back to last a valid point on the previous white, the lawsuits are averaging $20,000, that has been $8 million that has been played. and this is to the plaintive and a lawyer. i do want to say that our office and we did go through the federal courses and trackpad the lawsuits that were done by our cereal plaintiff. >> this was in san francisco alone? >> this was in san francisco alone.
moving on to slide #4. the office of small business, we created a program working with supervisor cohen chui en david chiu -- carmen chu and david chiu's office. this launced -- launched in 2012. the program contains information that businesses that lists the federal and state laws that govern them. what is a cask program, what to look for in an inspectors, federal ada task credits and deductions a business can take, and informing businesses that their casp inspections can be taken as a text and data -- a
tax deduction. we want to put together a loan program to help that -- businesses do with improvement and pay for an inspection. and work with the sf bar association to create some initial low-cost consultant for businesses. it should be noted that san francisco is the only city to date that has developed such a program for its small-business says. -- for its small businesses. with the annual mailing sent by the texas treasurer's office to food establishments, we mailed over 3000 food establishments in several different languages, information about needs for accessibility requirements, warnings of the potential lawsuits, and -- until we get
that information to the businesses. we had three businesses contact us after receiving the mailings. since 2008, our office has conducted 51 presentations and/or workshops. i have listed here that 28 had been city-wide presentations and on the left-hand side is the district and the number of presentations per district. for businesses have access the loan program, 40 businesses have utilized the bar association pose a legal services, we had 25 articles in print media, 10 in the chinese press, seven in the
chronicle sf gate, and in the examiner. we have not done enough outrage and effort -- outreach and effort into the ethnic, primarily the legend media. that is the third biggest business sector. we did a panel presentation on your legal rights with chuck finney and our office has seen 183 clients on ada issues, whether it is getting information about an inspection , if the business has received a letter and those that have been sued. >> we're going to ask people to
be as a sink as possible. if you could start to wrap up? >> i want to highlight our page on our website that has the information. and then i will conclude with the next level of outrage that we're working on -- outrage -- outreach. this will be one of the requirements the need to fill upon receiving a grant. i have worked with holly lung to put together a small grant and asian neighborhood design has been awarded that grant to put together a program. and work with businesses on solutions and that should start in 2012. it is a small grant so we will not be able to cover citywide.
also with the -- will be educating members to help in addition with outreach. the one sort of area where hopefully with asian neighborhood decide, we will be able to increase our capacity to outrage -- outreach with businesses. >> i would like to call up jason gong, an attorney who has worked with many businesses that have been stewed and is -- who have been sued. there is a powerpoint that has been distributed to all of us. go ahead. >> it afternoon.
i am trying to make sure we are coordinated here on the overview. i would like to talk about the framework and i think that from my experience as a litigation attorney, i defend businesses, landlords, and tenants from these access cases. it is important to step back and look at how we got to where we are. when the laws were passed, the americans with disabilities act, i do not think congress envisioned that we would be where we are today. and so i am going over the different laws that make up access claims, i am going to try to talk about what the law is saying, what is a common claim i have come across in litigation, and where there has been some cause for overlap that has resulted in some confusion based
on misinformation and basic flawed assumption and how that has snowballed into where we are today. where we are today, to -- we need to identify a problem and understand how it came to me? everyone is aware of the americans with disabilities act. i will refer to it as 88. these are some common laws that, in litigation and access claims. the ada is one of the claims that are asserted, claims asserted under the california state law, also the disabled persons act. how can these laws apply and they do because they overlap and apply concurrently. you're looking at federal standards and state standards and there are nuances and
differences. the goal of both sets of laws are inclined -- are increasing access. we see is full and equal enjoyment to accommodations offered by businesses. defined as business that are open to the public. and that is a broad brush. when the ada was passed in 1990, it was not effective until 18 months later, there was a grace period. the -- it was a civil rights statute. it was after the -- modeled after the civil rights act and like that statute, private enforcement, by the individual through litigation was how congress deemed was the best way to bring about fast and fare change -- fair change. they empower the individual to
bring about change. the ada does not provide for damages. it is purely a corrective measure. it allows injunctive relief which is a court order. someone can go to court and ask a court to order a defendant or business owner to make compliance is. the incentive for a lawyer to take on a case where he would get attorneys' fees. the two main components are intent of relief to cure the alleged defects and the attorney's feehan to incentivize attorneys that would of otherwise not take on the case. that was the main thrust. if the thing i want to mention, some common misperceptions -- the other thing i want to mention, there is common misperceptions. ada identifies and removes barriers. clients think the building is
old. it has not been remodeled or renovated. therefore they think their grandfather -- to hear that around -- you hear that around these cases, they are thinking grandfathering. it is an ongoing application. what may have been a barrier 20 years ago could be a barrier today. you have an obligation to not only identify but to remove the barrier if readily achievable. i will talk about -- there is a simple definition. i will skip ahead to garrido slides. usually it would be carried out with much difficulty and expense. it is a very over-simplified definition. it sounds easy but it is not in actual case in point. what may be affordable for one defendant may not be affordable for the other. for one property owner to
another, to one tenant to another. congress intended to be flexible and left a -- it vague. it is a case by case basis. it is not possible to have one- size-fits-all. that leaves part of the problem. each business's circumstances are different so you will not enough -- have necessarily one size fits all. i want to go back one slide. the ada through the department of justice which is the agency that is charged with setting forth guidelines to enforce the law through regulations, had a list of priorities for folks, business owners, and property owners to identify, to address. here are some that i have on the slide. the first one is access from the sidewalk or parking lot to the front door. when she never moved those barriers, you have to allow someone with disabilities to
access goods and services that are made available to all non- disabled individuals. if the food service related entities such a -- such as a restaurant, you must have a restroom and the rest must be accessible. there are other items such as telephones and atms. there are specific requirements, state and federal, that speak to those accommodations and those things such as tables, the door pressure, restrooms, those are classified as accommodations. that are offered to the public. we talked about readily achievable, a couple of factors that go into that analysis. what are the overall financial resources of the business? that depends on each person's circumstances, each entity's circumstances. also the nature -- how
burdensome are the proposed remedial measures? the last two items are not applicable to small businesses, they are intended for larger entities like a wal-mart or safeway or home depot to have multiple -- that have multiple locations. most small businesses do not. another reason we see access litigation in the news so often is there are a lot of businesses, a lot of properties, business owners, they all have a barrier in one form or another and identifying a barrier is not very difficult to find if you know what you are looking for. and there are very common barriers. i was talking about at first the list of priorities to allow access, it starts at the front door. a lot of businesses in san
francisco, in older businesses have steps in the front and the prohibits someone in a motorized wheelchair to overcome that barrier. and so from an ada standpoint, they are precluded from the beginning. what can be done about that? there is a number of litigants or cereal plant in sioux have caught on to that and they use that a lot and successfully in a lot of cases. i mentioned the ada is -- offers incentives relief and attorney's fees. over the years i found what drives the litigation is the attorneys' fees. sometimes attorneys' fees, oftentimes, fees exceed the amount of monetary damages that a plaintiff individual would get. supervisor mar: could you
explain the type of improvements like a ramp at a certain area or widening so wheelchair can go by? what are the main types? >> that is great. the main types would depend on if you are thinking about federal or state, the overlap as i mentioned, is a similar nature. i will speak about it generally. one of the readily achievable solutions for a step that the department of justice has concluded is a ramp. taking into consideration the slope, there must be a -- 1:12 ratio. if you had a five-inch step, you would have to have a 5 foot long portable ramp. in addition to demolishing the entire front of the store, repouring and resurfacing and regrading the ramp, in some
cases you need to go inside the store. there are businesses that might have considerable barriers to overcome with an eight-inch step. you would have to have an eight-foot ramp, that is unworkable. that tends to highlight what -- why that is achievable -- difficult to put your finger on. ok. that's the ada in a nutshell. there are two state laws commonly found. they draw the attention because the remedy for these statutes are monetary damages and that is what you hear about in the news when you hear that a business has been sued, the have to pay so much in damages to the plaintiff. they have to pay attorneys' fees
to the prevailing plaintive, and they have to pay the cost of repair which is often lost in the entire discussion. it may settle a case, but -- you may settle the case, but there are the hidden costs as well. that is the cost of remediation. the first lot is to -- law is the cdpa. it requires full and equal access and you will see this term, quite often. -- come up quite often. the california legislature amended this. the statutes i am about to talk about, there were on the books before the ada was passed. california had its statutes allowing access for persons with disabilities before the '88. the legislature thought we're going to change our laws and conform with the 88. there is a provision that says a violation or the -- any
violation of the americans with disabilities act shall also be a violation of the statute. so you can see how this may play out in that case. you have one plaintiff who identifies one barrier. the barrier is sufficient to stake a claim under the ada. there is also a sufficient claim under the california disabled persons act and enough to claim monetary damages, a minimum of $1,000 per occasion. yours -- to our ternate -- you are entitled to the attorneys' fees. you are either recovering that a underad -- under ada or state law. they coexist or overlap. this next law is one that many are familiar with. it is the driving force in terms of damages and access -- in
excess cases, the california unruhe civil rights act. it is a very broad application. all persons are entitled to full and equal accommodations in all instances of any kind whatsoever. that is taken from this -- the text of the statute. also the disabled persons act, a change to say, a violation of the ada services -- serves as a violation of this act. minimum damages of $4,000 per occasion. both the unruhe civil rights act and the ada provide that you recover civil or federal damages. if you can establish or damages that are more than $1,000 or
more than $4,000 each time, you can choose the higher of the amount. in some egregious cases, if you can show intent not to comply, you can seek a multiplier as a penalty, three times the amount of the damages. it is not three times the amount of minimum damages, it is three times the amount of the actual damages. if your actual damages were more than 4000, 5000, i could come after you and seek $15,000 per occasion. occasion means per instance i come to visit an accommodation and encounter a barrier, i am discriminated against because i do not have full and equal access. that is it in a nutshell. also there is a clause as well.
the connection between federal and state law, the way it plays on access and -- litigation is the attorney can seek relief under all acts, they can put them up there and pick and choose. it can stay all your claims and choose which ones you want. one important thing and want to mention under state laws, you cannot claim damages for both. it cannot -- if you are claiming under the disabled persons act for $1,000 minimum damage and unruh, you have to choose one or the other. as far as combining, that is permissible. the ada offer of incentive relief and attorney's fees. a state law comes in and provide monetary damages and that is what drives litigation.
these cases can be filed in state court and federal court in both courts, state or federal, are equipped to consider both claims, state and federal claims. i am pointing to a slide now, this is sb 1608, passed in 2008, codified in the civil code. 55.51 through 55.57. this was a piece of legislation that was intended in part to try to contain what was perceived as a growing problem presented by excess litigation. you probably heard and read about the few plaintiffs lawyers out there who have made the news. the legislation was introduced in part to address that problem. one way of doing so is that it clarified under state law